Looming inquiry into federal judge exposes flaws with Canada’s judicial appointment process
A federal judge’s possible removal from the bench less than a year after his appointment has raised troubling questions about whether judicial candidates are properly vetted before given jobs to some of Canada’s highest courts.
Federal Court Justice Robin Camp gained notoriety after a series of controversial comments he made during a sexual assault case while still an Alberta provincial court judge came to light.
Camp was among 45 people appointed to the courts by the outgoing Conservative government over a two month span before the federal election in 2015— the most in more than a generation.
He has since been suspended, his job in jeopardy due to a rare — and upcoming — public inquiry by the Canadian Judicial Council (CJC), the federal body that reviews judicial misconduct of superior court judges.
The alleged sexual assault victim in the 2014 case — who can’t be identified due to a publication ban — was 19 at the time. In court she testified that a man she had just met raped her at a Calgary house party in 2011.
According to the factum of the appellant filed by Alberta Crown, Camp’s “comments throughout the proceeding would lead an informed person to conclude that the Trial Judge… would not decide the matter fairly.”
It went on to say “discredited myths and stereotypes infected the Trial Judge’s analysis of the issues and resulted in the admission of irrelevant and presumptively inadmissible evidence… All of these errors arose out of his flawed understanding of ‘consent’ in the context of sexual assault offences.”
Examples of Camp’s questionable conduct include questions he asked the complainant:
“Why didn’t you just sink your bottom down into basin so he couldn’t penetrate you?”
“Why couldn’t you just keep your knees together?”
Other comments he made in court include:
“If she sees the door being locked…she’s not a complete idiot…she knows what’s coming next.”
“If she skews her pelvis slightly, she can avoid him.”
“She hasn’t explained why she allowed the sex to happen if she didn’t want it.”
“She knew she was drunk is not an onus on her to be more careful?”
Alex Wagar was charged with one count of sexual assault. According to Wagar’s testimony, the sex was consensual.
Camp acquitted Wagar in September 2014.
The following June, Robin Camp was appointed to the Federal Court by former Justice Minister Peter MacKay.
In November 2015, a group of law professors who learned about the trial lodged a complaint to the CJC.
Justice Robin Camp was suspended from the Federal Court and issued an apology:
“I have come to recognize that things that I said and attitudes I displayed during the trial of this matter, and in my decision, caused deep and significant pain to many people. My sincere apology goes out, in the first place, to the young woman who was the complainant in the matter.”
It should also be noted in October 2015, the Alberta Court of Appeal overturned Camp’s decision in the sexual assault case and ordered a new trial. No date has been set yet.
Was Justice Camp properly screened?
If Justice Robin Camp was properly screened should his behavior in the sexual assault case have been flagged before his appointment? If it had, would he still have been considered for the job?
“[Justice Camp] slipped through the system,” said Peter Russell, one of Canada’s leading judicial affairs experts.
“He didn’t like the law and was just going to ignore it,” said Russell.
“[Camp] shouldn’t be considered for appointment.”
In simplest terms there are two major steps a judicial candidate must meet before being appointed to a superior court. First a provincial committee called a Judicial Advisory Committee (JAC) vets the candidate and then passes the application with the findings on to the Justice Minister who determines whether or not to make the appointment. (More details on the appointment process further down)
But information about specific judicial appointments is strictly confidential. No information about the vetting by the JAC can be divulged; this includes any calls made to check on a candidate’s suitability for the job, what is said about the candidate on an application, even the date an application is filed.
There were certainly opportunities to flag problems with the candidate by the JAC or Justice Minister’s office.
“They should have [caught this],” said Russell. “Canada deserves better.”
Nine months elapsed between the sexual assault case in Calgary and Camp’s appointment to the Federal Court.
Three months before Camp’s appointment in June 2015, the Alberta Crown filed the appellant factum detailing Camp’s questionable behavior in the sexual assault case. These are public documents available from the courts.
There were opportunities to flag problems with Robin Camp before he got promoted. So who is obligated to ensure candidates are properly vetted?
There is no actual requirement for the Justice Minister or anyone in the minister’s office to screen a candidate. There is a requirement, however, for members of a JAC to vet.
To get a better understanding here’s a breakdown of the federal judicial appointment process (this includes positions in provincial and territorial superior courts, the Federal Court of Appeal, the Federal Court, and the Tax Court of Canada).
When a lawyer or provincial judge applies for a job to one of those courts an application is filled out. That application goes to the Office of the Commissioner of Federal Judicial Affairs. Consider this the administrative arm of the appointment process.
The Office of the Commissioner for Federal Judicial Affairs does an initial screening, ensuring the person meets the statutory requirements. Then the applications gets passed onto the provincial committee — the Judicial Advisory Committee (JAC).
JACs are supposed to do a thorough vetting of a candidate; this means evaluating competency and fitness for the bench, checking references, and calling various members of the legal community.
If the applicant is a lawyer the committee members can then either say on the application “recommend” or “unable to recommend.” The application then gets sent to the Justice Minister’s office.
But if the applicant is a provincial court judge things are different. JACs cannot “recommend” or “not recommend” those candidates. When the candidate is a provincial court judge, the JAC can only comment on a candidate’s suitability for the bench. Those applications are automatically forwarded to the Justice Minister.
WATCH: Former Commissioner for Federal Judicial Affairs David Gourdeau explains the appointment process
According to the code of ethics, members of JACs have to report anything about an applicant — lawyer or judge — that is “likely to cast an unfavourable light on the exercise of the judicial function… This applies whether the information relates to a candidate who is to be evaluated or one who has already been evaluated.”
It’s not known whether anyone from Alberta’s JAC flagged Camp before or after he was evaluated, or if at all.
16×9 reached out to every member of Alberta’s JAC. Those who did respond would not comment citing confidentiality.
Re-vetting crucial: former Justice Minister
There is no requirement for the Justice Minister to re-vet a candidate, but that doesn’t mean it can’t happen.
Former Liberal Justice Minister Irwin Cotler says he would re-vet candidates even after a JAC had already assessed the application.
“I would vet every candidate,” said Cotler. “You know I was one of those people who… somebody said never slept but I vetted every candidate.”
“[Judicial appointments are] the most important responsibility of a minister of justice. This is, as I put it, the legacy issue.”
A major reason to re-vet is because of a potential change in a candidate’s status.
When a lawyer applies the application is good for up to two years. When a provincial judge applies the application is good for up to five years. Applications can potentially sit in the Justice Minister’s office for years before there’s an opening.
During that time there could be a change in the candidate’s status that could affect eligibility; a person could develop health problems, commit a criminal offence or have a contentious case under appeal.
Cotler says to avoid this he or his Judicial Affairs Advisor (a person dedicated to judicial appointments in the office) would make calls to a candidate or a relevant authority before an appointment.
“We wanted to make sure, you know that there was nothing in any prospective appointment that could ever….the phrase that was used…bring the administration of justice into disrepute,” said Cotler.
“If … it would be made clear that this [appointment] is going to prejudice the administration of justice in this country and public confidence … then I wouldn’t go ahead with the appointment.”
16×9 reached out to former Conservative Justice Ministers Rob Nicholson, Vic Toews, and Peter MacKay to ask about the appointment process. Those who did respond declined to comment.
16×9 also reached out to Lucille Collard, Peter MacKay’s Judicial Affairs Advisor at the time of Robin Camp’s appointment, but did not get a response.
“Perception of politicization”
Global Integrity — a Washington-based think-tank — ranked Canada’s federal judicial appointment process among the weakest in the world. It gave extremely low scores to Canada for a lack of transparency and fairness when selecting judges.
The appointments to those courts are so sloppy, so shoddy,” said Russell, mirroring the report’s findings.
“The quality of justice will really be badly affected if you have a poor system of selecting judges… If you get poor judges, you get decisions that do damage to your interests and your rights.”
“It’s one of, in my view, one of Canada’s shames.”
Those already skeptical of the process weren’t reassured last year when just before the election in 2015, Justice Minister Peter MacKay appointed 45 people — including Robin Camp — to the courts in a two month span — the most in decades.
“I think that was just disgusting,” said Russell. “I just find that disgusting and abuse of process.”
“The vetting… it’s very difficult to be that thorough in that short a period of time particularly when you’re caught up in an elections process,” said Irwin Cotler.
“To make so many so soon on the eve of an election does have a perception of politicization about it.”
16×9 also tried asking former Justice Minister Peter MacKay about Justice Camp’s appointment multiple times. He said in an email: “This matter is now under formal review and as the former Minister of Justice now working in the private sector; I will refrain from any further comment as this is an open investigation.”
Camp and the historic public inquiry
A public inquiry is extremely rare — Robin Camp will be only the 12th judge in the history of the CJC to face one. It could lead to a recommendation for removal — essentially he could lose his job.
But what makes this inquiry historic— it’s the first one called by a Justice Minister in Alberta.
“It was not an easy decision,” said Alberta Justice Minister Kathleen Ganley. “It was not one I took lightly.”
Ganley read the court transcript after she was made aware of the sexual assault trial from one of the law professors who lodged a complaint to the CJC.
“I felt that the … the comments [of Robin Camp] were of a nature that could potentially undermine public confidence in the justice system,” she said.
“I think it’s really important that as … the political branch, that we are signalling to the population that … we don’t think that that sort of treatment is okay.”
There is still no date for the CJC inquiry, but in late March a five person inquiry committee — which includes three women — was formed.
16×9 reached out to Robin Camp but did not receive a response. His lawyer Frank Addario declined to comment.
16×9’s “Bad Judgement” airs Saturday Apr. 2, 2016 at 7pm
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